Virginia Gay-Marriage Ban Faces Boies-Olson Litigation Team

David Boies and Ted Olson, who helped upend California’s gay-marriage ban and triggered a national wave of similar lawsuits, are urging a U.S. judge in Virginia to make the state the South’s first to accept same-sex unions.

Virginia Attorney General Mark Herring said last month he wouldn’t defend the state against a lawsuit by two gay couples seeking to marry, comparing the ban to the state’s prohibition on interracial unions overturned by the U.S. Supreme Court in 1967. With the attorney general now on their side, Boies and Olson are set to argue the case today in federal court.

Boies, one of the country’s best-known litigators, and Olson, a senior Justice Department official under Republican President Ronald Reagan, will face lawyers for two county court clerks and the state’s Registrar of Vital Statistics.

Gay marriage is legal in 17 U.S. states and the District of Columbia. None of those states are in the South. Similar litigation is pending in states including Pennsylvania, Florida, Michigan and Utah, with lawyers on all sides seeing the issue as eventually being decided by the Supreme Court.

In June the Supreme Court left standing an order ending California’s voter-approved ban on same-sex marriage without saying whether similar laws in other states should also be struck down. The plaintiffs represented by Boies and Olson in the California case won after that state’s attorney general decided not to defend the ban and the Supreme Court ruled the measure’s supporters didn’t have legal standing to do so.

The two couples Boies and Olson represent in Virginia are asking U.S. District Judge Arenda L. Wright Allen in Norfolk, Virginia, to rule without a trial that a provision in the state constitution denying same-sex couples the ability to marry violates the U.S. Constitution’s 14th Amendment guarantee of equal protection under the law. The measure was approved by referendum in 2006.

Fundamental Right

“The Supreme Court of the United States recognized that ‘marriage is one of the civil rights of man, fundamental to our very existence and survival,’’ plaintiffs Timothy Bostic and Tony London said in a complaint filed in July.

Boies, of Boies Schiller & Flexner LLP, and Olson, of Gibson Dunn & Crutcher LLP, became famous opponents after the contested 2000 election between George W. Bush and Al Gore went to the Supreme Court. Olson represented Bush while Boies was Gore’s lawyer. Olson later served the Bush administration as U.S. solicitor general, the federal government’s top litigator and Supreme Court advocate.

‘Ancient’ Institution

In seeking to have the court throw out the Bostic-London, suit, Janet Rainey, Virginia’s statistics registrar, argued that traditional marriage is a ‘‘foundational and ancient social institution that predates the formation of the nation.” Restricting marriage to one man and one woman serves a range of social interests and it’s the job of the state to protect, she said, while arguing the ban on same-sex unions isn’t discriminatory.

Herring’s decision days after being sworn in struck a nerve in a state that’s politically almost evenly divided and deeply split over social issues. Some Republican lawmakers are calling for his impeachment for refusing to continue defending the law.

Herring, a Democrat, beat Mark Obenshain by 907 votes out of more than 2.2 million cast in November. Obenshain’s campaign positions were largely in line with the previous Attorney General Kenneth Cuccinelli, a Republican who was known for promoting restrictions on abortion, refusing to protect gays in state government and investigating a former University of Virginia climatologist who argued human activity is a cause of climate change.

As incoming governor, Terry McAuliffe, also a Democrat replacing a Republican, had promised a period of political bipartisanship. It ended with Herring’s position change in the case.

‘Wrong Side’

“Virginia has argued on the wrong side of some of our nation’s landmark cases -- in school desegregation in 1954, on interracial marriage” in 1967, Herring said in announcing the shift. Herring was the fourth state attorney general to stop defending a state in lawsuits over gay-marriage bans.

Bostic, a professor at Old Dominion University, and London, a U.S. Navy veteran who has been a real estate agent for 16 years, have been together since 1989, according to court papers. They are joined in their suit by another gay couple, Mary Townley and Carol Schall, who were denied a marriage license in Chesterfield County.

The judge said she won’t issue a ruling today after hearing arguments in the case.

The Virginia case is Bostic v. McDonnell, 13-cv-00395, U.S. District Court, Eastern District of Virginia (Norfolk).